In the words of Bob Dylan, “It’s not dark yet, but it’s getting there.”
The confirmation of Brett Kavanaugh to the U.S. Supreme Court, replacing Anthony Kennedy, is not a setback for those who hoped the Court would in the near future finally rule that the death penalty is a barbaric punishment that has no place in a civilized society, it’s a death knell.
Describing Kavanaugh as a “doctrinaire law-and-order conservative,” in Vox, Dylan Matthews writes that “What will change are rulings on issues where Kennedy has helped maintain a shaky 5-4 center-left consensus, and where Kavanaugh absolutely will not. . . . A court without Kennedy and with Kavanaugh is substantially more likely to . . . . reject challenges to capital punishment.”
While Kennedy was hardly an opponent of the death penalty, he didn’t reflexively reject challenges to it, and in fact, was responsible for writing opinions that chipped away at some of the most barbaric elements. He wrote the majority opinions in Roper v. Simmons (2005), which banned the death penalty for those under the age of 18 at the time of the crime; Hall v. Florida (2014), which held that a bright line standard in determining intellectual disability was unconstitutional in deciding whether a defendant could be charged with capital murder; and Panetti v. Quarterman (2007), which found that defendants sentenced to death could not be executed if at the time of their execution they didn’t know why they were being killed.
He was also opposed to solitary confinement, writing in a concurring opinion against the defendant, Hector Ayala, in Davis v. Ayala (2015) that “Years on end of near-total isolation exact a terrible price. In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them. Over 150 years ago, Dostoyevsky wrote, ‘The degree of civilization in a society can be judged by entering its prisons.’ There is truth to this in our own time.”
It was a remarkable statement, especially because it was written in a concurring opinion to Justice Samuel Alito’s opinion upholding a death sentence for Hector Ayala, who had appealed his sentence on the grounds that his attorneys had been excluded from a Batson hearing in which the prosecution explained to the judge why it had excluded African-Americans and Latinos from the jury.
As Marty Lederman wrote in Slate at the time, “Kennedy wrote separately to raise an issue that had nothing to do with the question before the court” in order to make a “pronouncement that he is now prepared to recognize at least some constitutional limits on the horrific practice of extended solitary confinement—after many decades during which the court showed little or no inclination to do anything of the sort.” With Kavanaugh, it’s likely the court will revert to ignoring the issue of whether solitary confinement constitutes torture and will allow the practice to continue unabated.
And when you consider the other issues in which there was hope that Kennedy would be the deciding vote when they reached the Court, e.g., executing by lethal injection the elderly and the seriously ill — those whose bodies are too ravaged by disease to allow a painless death (think the torturous botched finally aborted execution of Doyle Lee Hamm) — and racist and homophobic capital juries, the future looks grim for the criminal justice system.
It’s not dark yet, but it’s definitely twilight.